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Introduction
1. Mairiage
A. Meaning and Definitions of the tenn Maixiage
(a) Legal aspect
(b) Religious aspect
(c) Social aspect
(d) Ordinaiy contract vis-a-vis Maniage contiact
B. Effects of a Valid Marriage
C. Mutual Rights and Obligation
D. Rights of the Husband and Duties of the Wife
E. Rights of the Wife and Duties of the Husband
F. Betrothel at the time of birth
G. Position under Hindu Law
H. Importance of Guardian's consent in the Marriage contract of a
Minor
I. Selected Hadith
J. Positions under various Laws
(a) Hanafi Law
(b) Maliki Law
(c) Hambali Law
(d) Shafai Law
(e) Shia Law
(f) Ismailia Law
K. Doctrine of Option of Puberty
L. Approach of Hindu Law
Conclusion
CHAPTER - II
C O N C E P T OF M A R R I A G E U N D E R I S L A M
Introduction :
the purchase of the birde; the bridegroom concludes the contract with
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the legal guardian (wali) of the bride, and he undertakes to pay the
nupital gift (mahr sadak) or dower not to the wali as was customary
1. MARRIAGE
or Nikah as it is called in Arabic, has fixed and rigid rules which had
conservative nature not taking consent of the girl while fixing her
husband according to her own wishes. Where the consent of the girl
is lacking and where she has been waived her right and parents
Marriage.
Other definitions :
According to Tayyab Ji :
between a man and woman, those are after being married, become
act; its object are right of enjoyment and procreation of children and
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Essentials of Marriage :
2. Competent parties
3. No legal disability
should agree in the marriage at one meeting and the agreement should
accompanied by two witnesses. The relation asks the girl within the
marriage on her behalf for the dower money offered by the husband.
other method, then this matter goes' to Qazi and Qazi reads some
also covers the other aspects e.g. legal and religious. The Quran and
Hadith have been accepted as the basis of religion and law. Islami
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law lays down the principles of belief, act of worship as basic tenets
reputation that even its obiter dicta carries the legal sanctity of ratio-
decidendi.
purely a civil contract and not a sacrament, while the later one
considers the marriage in Muslim law, as not only a civil contract but
(i) The central idea in the family law of the Muslims is the
that the tribal system was effectively changed into the family
system."'
as a civil contract.^^
follows :
recitation of certain verses from the Koran, yet the Muhammadan law
Mahmood J., supports his view from the text of Kanz, the
Kifayah and Inayah which says that marriage is a contract which has
it was also instituted for the solace of life and is one of the prime or
this, the learned Judge does not put forward any argument in favour
chracteristics:
law;
(iii) the terms of a marriage contract are within legal limits capable
Though the learned Chief Justice does not himself say that
Muslims, we will have to consider its aims and objects. Besides this,
we must also examine as to what are the injunctions of the Quran, the
healthy way.
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is essential for every physically fit Muslim toenter into marriage, the
only condition being that he should be capable to afford it. And the
of the writers that Prophet (SAW) has said that marriage is equal to
came afford it.^^ Moreover, the following traditions may also be taken
into consideration.
marries with a view to secure his chastity, and third, he who fights in
is now rests with him to complete the other half by leading a virtuous
eyes God puteth a blessedness in her for him, and in him for her.^'
in view the above tradition he would have said that the one who
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enters into a civil contract complete half of his relgion, the Almighty
physically fit Muslim to enter into civil contract, and so on. All the
Ali, has commented that marriage is for the protection of society and
in order that human beings may guard themselves from foulness and
unchastity.^''
the same effect, in order to enhance and maintain its sanctity as the
mosques are the most sacred places before the Prophet (SAW) of God.
The Holy Quran uses the word "sacred covenant" for marriage.^^
asked people to see their brides before marrying them, and taught that
A
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and faith, which has continued from the days of Adam and which will
Any person who does not marry for fasting, praying and
keeping himself awake in the night has been scolded by the Prophet
thus :
"1 keep fast and break it; I pray and I sleep and I am married;
me".-^^-'
unmarried are the unworthy amongst you and those who die
and honour each other. Enjoyment and showering love and affection
the Holy Prophet (SAW) follow strictly the above lines and are an
He says:
responsibilities"
the sacred marriage tie in its spirit and essence and not to make a
mockery of it.
important factors:
(i) Islamic law gives to the woman definitely a high social status
after marriage.
Islamic times.
not merely a civil contract devoid of all religious and spiritual values.
(ibadat)".^^
Sulaiman C.J., differs from Mahmood J., who had applied analogy of
marriage as civil contract with contract of sale of goods and the right
observed:
unpaid is analogous to the lien of a vendor upon the sold goods, while
they remain in his possession and so long as the price or any part of
of the goods to the vendee.''^ The same is the principle, upon which
wife in consideration for the payment of the dower and even if such
Qadir's case".'^^
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when the goods have parted the possession of the seller and
unpaid seller only when the goods have parted his possession,
but have not yet reached the buyer, and in the meanwhile,
is regained. Hence, after the wife left the house of her husband,
because her right has been revived after the cohabitation ceased.
It may also be pointed out that prompt dower does not become
The consent of the wife before her dower became due should
logically not destroy her right to recover her dower after it has
place. She should have the right to insist upon its payment
(4) Justice Mahmood said that once consummation has taken place,
(5) There are buyers and sellers in a contract of sale and the
the wife herself is to receive dower and not her parents, this notion
The dower was treated as a price for the bride and she was an object
Islam reformed the society and conferred a higher status to ladies than
unanimous on the point that dower is a mark of respect for the wife.^^
and the guardians can validly contract marriage for their wards - but
because
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event; and
for alimited period of time, it would fail to fulfil most of its essential
purposes.^^
in the Muslim law for the proposition that any or all of them are
follows :
enjoyment of either of them (husband and wife) with the other in the
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wife to the power of restraint, i.e., she becomes prohibited from going
enjoins upon him associating familiarly with her with kindness and
All these legal effects can not flow from an ordinary civil
contract, as they have been put forward and showed by Sir Sulaiman
judicial interpretation.^'
parties;
(iv) All conditions (whether made before or at the time or after the
not opposed to any law for the time being in force, or to public
(i) The wife is bound to observe strict conjugal fidelity from the
time of marriage;
and decency;
husband;
(v) Except for some reasonable cause the wife is bound to reside
(vi) The husband may place a reasonable control over the movement
of the wife.
(i) The wife becomes entitled to get her dower as the law provides.
(iii) She becomes entitled to the use of an apartment for her own and
degrees at least once a year and her parents and children from
husband and nor the wife acquires any interest in the property of the
mainly because the religious texts says that unless a man begets a
daughter he can never attain paradise. Besides, the girls are never a
shy and coy and do not speak regarding her marriage matters.
for new born and betroth of their grand-children. The optimum age of
else and so fate of such marriage are divorce. Because at the time the
finance or else, the young man developed habits which lowered him
for granted that the girl will ultimately come into their families. The
most common fields in which the in laws had much say, are education
in laws about the girl education and pardah practices led to the
Parents pay why do not any heed towards the right to choose
her spouse by the girl herself and her consent being so vital? They
ignore the teaching of Islam and saying of the Prophet (SAW). When
Islam provide right to choice then why do parents curtail this right?
keep pace with the Islamic teachings. Parents sould respect her
daughters choice.
is necessary?
4. Whether the minor wife has right to repudiate the marriage after
are made, but, it is an established fact that all agreements are not
enforceable contract. The reason is that unless and until the parties
to the contract agree for something in the same sense and in the same
The Indian contract Act, 1872 lays down great emphasis not
only to the desirability of concent but also on the presence of free
consent.
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its essence, a consent on the part of a man and woman to cohabit with
each other and each other only. The religious element does not require
possessing the capacity to enter into the contract is valid and binding,
Shafei's and Maliki's Law though the consent of adult virgin is same
the consent of adult virgin is not sufficient for the completion of the
expressive. In the case of virgin girl, the jurists of all schools hold
signifies consent.
It is clear that all the four Sunni School's and Shia school
agreed on this point that the free consent of the parties in marriage
of law.
recognised by law.
her guardian for marriage. The right has been given to the minor to
and under this form of Hindu Marriage it contemplates girl being the
veda, that the girls to be married should be young or fully grown up.
The ancient Shastras also did not enjoin child marriage. But it was,
only later on, when the society become degenerated that child
marriage become prevalent in the Hindu society and new Smiritis and
entirely between the father of the girl and the future husband. The
girl has nothing to do but to obey. Because she has been given in as
a gift.
husband for her, at any reason within, three years after she has
At par with as per Muslim law the Hindu society has also
by the wife before she attains the age of 18 years and after attaining
the age of 15 years. This clause provide some relief to those Hindu
girls who married, below the age of 15 years and such marriage was
possessing the capacity to enter into the contract is valid and binding
particularly, lays down the principles by which they may not only
marriage stable free consent of male and female or we can say they
must exercise their right for choice while negotiating the marriage
contract.
behalf should agree to the marriage at one meeting and the agreement
should be witnessed by two adult witnesses. The relation asks the girl
to the marriage on her behalf for the dower money offered by the
the girl says "yes" or signifies her consent by some other method, the
three person come out and place themselves before the Qazi. The Qazi
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asks the boy whether he offers to marry the girl on payment of the
Quran, a covenant between the husband and the wife in the presence
man without her consent. This is her right which must be respected
more expressive right to her personal consent then her guardian and
consent.
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another marriage, when she had already been married (matron) and,
she disliked next marriage. She went to Apostle of Allah! (SAW) and
keeps silence that indicates her permission, but if she refuses, the
These traditions show that the consent of the parties is necessary for
The Hedaya holds the same opinion, it says "a woman who is adult
although the contract may not have been made or acceded to by her
be express. But when the girl is virgin, the jurists of all schools hold
because the Prophet (SAW) said :" the virgin must be consulted in
married and has no husband should utter her consent. Also her absent
will not amount to consent, nor will crying alone, be taken as denial.
But if the girl merely weep slightly, it may be taken as if she was
when a father consult his daughter before marriage and does not
mention the dower or the name of the husband, and she remain silent,
the marriage.
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uncle from a major virginit may not be given expressly but when the
a virgin girl and she remain silent it tantamounts to her consent. Thus
other than the nearest guardian i.e. by strangers or a remote wali there
and living with her husband, and by virtue of this she ceases to be a
a wali.
contract, to settle the terms and other similar points, and to guard the
marriage only upto the pre-marriage contract. Even then the consent
a minor
she gets her dower for the intercourse her husband has had. If there
is dispute,the Sultan is the guardian and will decide upon it.^^ Abu
It is related from Abu Saad and Ibn Abbas, that the Apostle
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of Allah says: "whoever has a son born to him, let him give a good
name, and teach him good manners, and when he reaches puberty let
him get married, and if he reaches puberty, and he does not get him
married, and he falls into sin, than the father is only responsible.^^
that the Apostle of Allah says : " it is written in the Taurat, that he
whose daughter reaches twelve years of age, and he has not given her
in marriage and she falls into sin, he is responsible for that sin.^'^
default of paternal relations this right devolves upon the mother and
marrying them by their guardians. From time to time the Holy Quran
gives guidelines to human being for good behaviour, case and protect
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giving of the bride in marriage contract. The guardian those act during
i) Hanafi Law
married.
In this school father also has the power to give their children
of both the sexes in marriage without their consent, until they reach
Under Shafai law, the father has the right of Ijbar over his
daughter without asking her consent whatever her age may be,
consult her as to her future husband and her formal consent to the
minor has been contracted in marriage is valid and binding, and it can
a Ghair Kufa (to the one who is unequal to her by birth or by position)
such marriage will not be operative or valid, and Qazi will the power
Among the Shafei, Ithna Asharia, and Ismaili laws; only the
1. The order of priority between the various persons who can act
will or otherwise.
2. A remoter guardian can not act out of turn, and a non guardian
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can not act at all. In either case the marriage, if it has taken
effect.
3. it is not clear that what has to be done if, in case, the person
2. Under the Shafei law, a girl though neither minor nor insane
can not contract her first marriage without the consent of her
v) Shia Law :
Under Shia Law, the father and grandfather are the only
The order of priority between the two is first father's father then the
father. A Wali or guardian must be major, sane and free. He must not
Ismailia law too, a girl can not (though not minor) contract
a marriage without her marriage guardians intervention.
necessary can the personal wishes of the boy or the girl to be married,
Regarding the last of the above mentioned case (i.e. the case
of Shafei girls) on the basis of non-nandatory textual rule regarding
the desirability of obtaining the girls consent and this emphasis,
keeping in view of contractual element in marriage contract, the
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Indian courts have held that where the marriage has in such a case,
been contracted openly without the consent of the girl, it will not be
valid^-l
which is prior in time both will be void.^"* or the girl may on attaining
operative.
marriage of minor would be done by Qazi.^"^ But not, when the wali
the marriage, then the Qazi would authorize the next guardian to
Ibn Najum has declared judicially that, when the Qazi has
given his sanction to the marriage of a minor there can be no further
dispute and no outsider can again question it. If there is the absence
of all relations, wilayat is shifted to Sultan and then to Qazi.
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guardian, the marriage will be void, the later may while the former
of puberty. This right is one of the safeguards which the Muslim Law
on indirect under the assumption that girl being minor cannot exercise
undue influence rather these types of marriage might have had very
bad consequences.
(SAW) and narrated that her father had given her in marriage to a
Aisha (R) reported, that a girl came and stated that her father
had given her in marriage to his nephew and she dislike him. I told
to the Prophet (SAW) the full story of the girl. He at once sent a
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message for the father of the girl and enquired from him whether the
facts stated were true, after which he told the girl that she was at
liberty to choose her life partner or repudiate her marriage, and that
she would only to know whether woman had any right in marriage
contract.
daughter.My uncle Qudamah, married her to me, and did not even
consult her when the girl came to know of this, she dislike this
while the marriage of her not yet been consummated. The rule
unaware of her marriage, when she attain puberty, retains this right
until she becomes aware of the marriage and option is prolonged until
she is accjuinted with the fact that she has the right to repudiate the
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marriage and she can exzercise that right within a reasonable time.
The option is lost if the wife, after she attains the puberty permits the
CONCLUSION
should have mutual consent thereto. But under Shafei's and Maliki's
has been given more right to express her consent than that of
All four schoolsof Sunni's and Shia's agreed on this point that free
law, but minor is not the guardian's property which may be "given"
provide there daughters and sons there right to make choice while
as the question of conflict between the views of the minor and the
of the guardian, since law does not regard a minor as mature enough
the guardian, the marriage will be void. Later minor may ratify the
been made by this Act in respect of time when the right of option of
puberty can be exercised by the minor girls. Under Muslim law the
extend to the age of fifteen years. But under this Act marriage may
completing the age of eighteen years. Thus this Act made a general
provision for any girl either Saibba or virgin and this right is not
available to a male.
coersion has ceased or duress has been removed. If one shows that
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the insistence of the party whose consent was not so obtained. Thus
for the validity of a marriage consent should be free from fraud, force
or mis-representation etc.
satisfaction that whatever they are doing, they are doing by their free
will. Thus every legal system, including Hindus must give weightage
to consent.
maturity in the womb, and if a child is born in such case, it will not
t
that the king is the Supreme guardian of all the minor within the
realm. The minor children mostly lived in the joint family and were
always under the protection of Karta. Even after the death of the
father the child was not without protection, who soever was the Karta
protected the child even if a child was outside the role of joint family,
he ,if belonged to the first three classes, has to go the Guru's Ashram
for study and was under the protection of the Guru. Regarding
and the mother were in order, qualified to act guardian for marriage
qualified to give consent for his marriage. It may be noted that the
marriage, rests with the father. This right is not to be lost merely
because the father has been convicted of theft or any other affence
not connected with domestic relations. But where the father has
disserted his wife and daughter, the mother can give the daughter in
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marriage without the consent of the father. Even where the father is
alive and otherwise capable of giving away his daughter, the non-
provided the necessary ceremonies have been performed and there has
for the purpose of marriage is not so much a right as a duty and the
the absence of the father, mother becomes the legal guardian of her
And only those persons can act as guardian who himself has
years was given in marriage by her brother who himself was below
eighteen years. It was held that the minority of the bride or her
guardian is by itself not a ground for rendering the marriage void and
been observed by Punjab High Court that, where the girl is below 18
years on the date of marriage and the doctrine of "facliim valet" has
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for sometimes.
Dayaram^^. The Himachal Pradesh High Court held that the marriage
the bride is below eighteen years and the consent of guardian has not
Shankar Prasad Vs Smt. Radha that the jurisdiction of civil court (not
minor, the consent of guardian is necessary. Even the minor wife may
As per Muslim law, the Hindu society has also adopted the
under (iv) of the Section B(2) of Hindu Marriage Act which was
may be repudiated by the wife before she attains the age of 18 years
and after attaining the age of 15 years. This clause provide some
relief to those Hindu girl who married below the age of 15 years and
Muslim law it is also essential that the marriage should not have been
consummated before she repudiated it, but under Hindu law, clause
well being at the individual and the society. It does not consider it
117
of ones life.
legal capacity and role in the family continued to deny women rights.
generation.
well being of the individual and the society. It does not consider it
of ones life.^''
their legal capacity and role in the family continued to deny women
References
9. Ibid, p. 438.
13. Ibid.
14. Ibid.
30. Ibid. I
33. Ibid.
36. Ibid.
38. Ibid.
60. Abdul Qadir's case (at P. 109 of Fyzee's case book Fyzee: Case
law in India and Pakistan (Oxford 1965) P. 109.
62. Mohammadan Law in India & Pakistant by B.R. Verma, PP. 84-
85 (1959) see for points (A), (B) & (C).
66. Fatwai Alamgiri, Vol. I p. 405 and Fatwai Kazi Khana Vol. 1,
p. 481.
79. Ibid.
85. Ibid.
1
88. Ibid.